Re Computer Accounting And Tax Pty Ltd
[2020] WASC 108
•31 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE COMPUTER ACCOUNTING AND TAX PTY LTD; EX PARTE MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) [2020] WASC 108
CORAM: HILL J
HEARD: 10 & 17 MARCH 2020
DELIVERED : 31 MARCH 2020
PUBLISHED : 31 MARCH 2020
FILE NO/S: COR 2 of 2010
EX PARTE
MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq)
Applicants
Catchwords:
Practice and procedure - Application for access to transcript of hearing in 2010 - Whether required for defence of notice of motion for contempt - Application dismissed - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | Mr D John |
| Interested Party | : | In Person |
Solicitors:
| Applicants | : | Herbert Smith Freehills |
| Interested Party | : | In Person |
Case(s) referred to in decision(s):
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Kennedy v Lovell [2002] WASCA 217; (2002) 27 WAR 39
Little v Lewis [1987] VR 798
Owston Nominees (No 2) Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38
HILL J:
On 8 October 2019, Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (in Liq) filed a notice of motion for punishment of Angela Cecilia Theresa Frigger for contempt of court.
Particulars of the notice of contempt were annexed to the notice of motion. In par 12 of the particulars, it is alleged that Mrs Frigger is in contempt of court by reason of:
(a)her disobedience of orders 2 and 4 of Master Sanderson's orders of 15 May 2014;
(b)her disobedience of orders for confidentiality made by Acting Master Chapman on 17 January 2012.
On 5 March 2020, Mrs Frigger applied for an order to obtain a copy of the transcript of a hearing before Acting Master Chapman on 17 January 2012.
For the reasons which follow, it is my view that Mrs Frigger's application should be dismissed.
Relevant Procedural History
This application is the latest application in a very long history of applications between these parties. As has been noted by numerous members of this court, there is a long history of acrimony between Mr and Mrs Frigger and Professional Services of Australia Pty Ltd and the liquidator of Computer Accounting and Tax Pty Ltd, over more than 10 years.
These proceedings (COR 2 of 2010) were commenced on 8 January 2010 by originating process and sought an order for the winding up of Computer Accounting and Tax Pty Ltd (CAT).
The application came on for hearing before Justice Simmonds on 20 and 21 January 2010. On 21 January 2010, Simmonds J delivered his reasons for decision for making orders, inter alia, appointing Mr Mervyn Kitay as provisional liquidator of CAT.[1]
[1] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38.
On 6 May 2010, Master Sanderson ordered that CAT be wound up in insolvency and appointed Mr Kitay the court‑appointed liquidator of CAT.
On 6 January 2012, the liquidator filed an application for approval of entry into three agreements pursuant to s 477(2B) of the Corporations Act 2001 (Cth). The application came before Acting Master Chapman for hearing on 17 January 2012. Acting Master Chapman made orders in terms of the application. The orders included an order that the confidential affidavit of Mervyn Jonathan Kitay dated 5 January 2012 remain in the court file in a sealed envelope marked confidential, such confidential affidavit not to be accessed by any person without order of this Honourable Court.
On 25 November 2013, the liquidator filed an application for orders in respect of the confidential affidavit. The application came before Master Sanderson for hearing on 17 March 2014. Mrs Frigger appeared for herself at the hearing before Master Sanderson. I note that she was given an opportunity to file an affidavit and written submissions in opposition to the application prior to delivery of judgment.
On 15 May 2014, Master Sanderson delivered his reasons for decision and made orders in respect of the confidential affidavit. The orders of Master Sanderson included orders that:
2. Within seven days of the date of this order, Mr and Mrs Frigger do each provide a written statement to the solicitors of the applicants:
(a)that they have not retained any copies of the Confidential Affidavit or any of the annexures thereto;
(b)that they have permanently deleted any electronic copies of the Confidential Affidavit and any of the annexures thereto in their possession.
…
4.Mr and Mrs Frigger be restrained from disclosing the contents of the Confidential Affidavit or any of the annexures thereto to any person including any solicitor to counsel acting for them in the future.
On 8 October 2019, Mr Kitay filed a notice of motion for punishment of Angela Cecilia Theresa Frigger for contempt of court for alleged disobedience of the order for confidentiality made by Acting Master Chapman on 17 January 2012 as well as order 2 and 4 of Master Sanderson's orders of 15 May 2014.
Applicant's submissions
In support of her application, Mrs Frigger filed written submissions prior to the hearing. These submissions primarily address Mrs Frigger's contentions as to why the orders should not have been made by Acting Master Chapman and refer to the contents of the Confidential Affidavit. That is not the application that is presently before me. I consider that these matters are not relevant to the application I am required to consider. As a result, I have not addressed these matters in these reasons for decision.
Mrs Frigger contends that she requires access to the transcript so that she can defend the contempt proceedings brought by the liquidator. She submitted that she could not be held in contempt of an order of the court that had been obtained by fraud and that the court was required to investigate the history of the matter, including the reasons that orders were made by Acting Master Chapman on 17 January 2012.
In support of this submission, Mrs Frigger referred me to two decisions: first, the decision of the New South Wales Court of Appeal in Athens v Randwick City Council;[2] and second, the decision of Allsop J in Owston Nominees (No 2) Pty Ltd v Branir Pty Ltd.[3]
[2]Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58.
[3]Owston Nominees (No 2) Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558.
In Athens v Randwick City Council, the applicants had been found guilty of contempt of orders previously made by the Land and Environment Court of New South Wales. The applicants appealed against the decision. In delivering reasons for decision dismissing the appeal, the court considered the approach to construction of previous orders of a court.
Hodgson JA noted that the construction of an order in respect of which a finding of contempt is sought may involve two inter‑related questions: one, on its proper construction, what does the order require?; and two, is this sufficiently clear to the person the subject of the order to support enforcement of the order against that person?[4]
[4]Athens v Randwick City Council [27].
In relation to the first question, Hodgson JA (with whom Santow JA and Tobias JA agreed) stated:[5]
There is no doubt that, in addressing the first question, one can consider context in the case of consent orders, in much the same way as one can consider context in construing a contract. In my opinion, it is also plain that, in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings. [citations omitted]
[5]Athens v Randwick City Council [28].
In respect of the second question, Hodgson JA (with whom Santow JA and Tobias JA agreed) stated:[6]
It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law.
[6]Athens v Randwick City Council [36].
In Owston Nominees (No 2) Pty Ltd v Branir Pty Ltd, the court considered an application for clarification of orders made previously by the court. Specifically, the court had before it a notice of motion that was seeking declaratory relief as to the proper construction of orders previously made by the court.
Allsop J noted that:[7]
[T]he common law appears to recognise, relevantly, at least four relevant possible bases for the exercise of power to deal with entered orders (i) ambiguity, invoking the need for construction, (ii) where the order does not reflect what the court decided, (iii) where something is to be added not dealt with by the court, which circumstance is probably limited to 'ancillary' or 'consequential' matters, and (iv) a supplemental order, the need for which arises from circumstances occurring after the order was made. (I leave aside the slip rule, fraud and self executing orders.) In respect, especially, of (i) to (iii) above, it is necessary to look at the surrounding circumstances. These include the reasons, the pleadings and, if necessary, the evidence and how the case was conducted. [citations omitted]
[7]Owston Nominees (No 2) Pty Ltd v Branir Pty Ltd [39].
Allsop J confirmed that orders of the court should be clear and reflect what was intended by the court.[8]
[8]Owston Nominees (No 2) Pty Ltd v Branir Pty Ltd [72].
Respondent's submissions
The respondent opposed the application by Mrs Frigger. Most of the oral submissions made by the respondent at the hearing were in response to Mrs Frigger's written submissions. As noted above, I do not consider that these matters are relevant to the application before me and, accordingly, I do not propose to deal with these submissions in these reasons.
In respect of the application for access to the transcript, counsel for the respondent submitted that in this case the orders were crisp and clear and it was not necessary, on the hearing of the notice of motion for contempt, to have regard to the surrounding circumstances in which they were made.
The respondent contended that Mrs Frigger's objective in filing this application was to obtain the transcript to support an application to set aside the confidentiality order. They submitted that any application to set aside the order of Acting Master Chapman was not relevant to their notice of motion. Once the order had been made by the court, it was incumbent on Mrs Frigger to comply with it. Put simply, until the order is set aside, she is required to act in compliance with it. For this reason, counsel for the respondent contended that the transcript of the hearing on 17 January 2012 was not relevant to the notice of motion nor Mrs Frigger's defence of the application.
Disposition
In my view, the order of Acting Master Chapman which is the subject of the notice of motion for contempt is clear, self‑contained and self‑explanatory. The order requires that no person can access the confidential affidavit of Mr Kitay dated 5 January 2012 without order of the Court. Mrs Frigger did not put forward any basis for asserting that this order was ambiguous or that it was otherwise necessary to consider the context in which the order was made in order to construe the order.
For this reason, I do not consider that it is necessary for Mrs Frigger to have access to the transcript of the hearing on 17 January 2012 for the purposes of defending the notice of motion for contempt.
The alternative basis put forward by Mrs Frigger for access to the transcript was so that she could consider making an application, pursuant to the Rules of the Supreme Court 1971 (WA), O 58 r 23, to set aside the ex parte orders of 17 January 2012.
In Kennedy v Lovell, Malcolm CJ, in dealing with an application to find the respondent guilty of contempt, stated (Murray and Steytler JJ agreeing):[9]
In Chuck v Cremer [1846] 1 Coop Temp Cott 205; 47 ER 820, Lord Cottenham LC said at 342:
'A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that suitors, or their solicitors, could themselves judge whether an order was null or valid - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.'
This decision was applied by the Court of Appeal in Hadkinson v Hadkinson [1952] P 285 in which Romer LJ, with whom Somervell LJ agreed, said at 288:
'Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt. It is the second of these consequences which is of immediate relevance to this appeal. The rule, in its general form, cannot be open to question. There are many reported cases in which the rule has been recognised and applied, and I need refer only to Garstan v Garstan [[1865] 4 Sw & Tr 73; 34 LJPM & A 45; 164 ER 1443] and Gordon v Gordon [[1904] P 163].
An alleged contemnor is not himself or herself entitled to seek any relief from the court in relation to the subject matter apart from, for example, seeking to be released on bail pending the substantive hearing of the charge of contempt, as happened in this case.'
Hadkinson v Hadkinson was cited with approval in the Full Court of the Supreme Court of Victoria in Little v Lewis [1987] VR 798 at 804 ‑ 805 per Kay J, with whom O'Bryan and King JJ agreed. In my view these decisions correctly state the common law as it applies in Western Australia.
[9] Kennedy v Lovell [2002] WASCA 217; (2002) 27 WAR 39 [54] - [56].
In Little v Lewis,[10] the Full Court considered an appeal against an order committing the appellant, a practising solicitor, to imprisonment for contempt of an order of the court. In dealing with the appeal against the committal for contempt, Kaye J stated:[11]
The appellant did not dispute his conduct in continuing to practise after being enjoined. He did so deliberately and in defiance of the Court's order. To this Court he stated that he did so because he considered the order of the learned Judge to be wrong and that he is not bound to obey a decision of the Court which he considers to be wrong.
No appeal against the order enjoining him was initiated by the appellant before the hearing of the contempt proceedings. He was at that time considering an appeal. He did not, however, make application to the learned Chief Justice for an adjournment of the contempt proceedings. The Chief Justice stated, in the course of his reasons for committing the appellant, as follows: 'The order made by the primary Judge cannot be called in question before another Judge of this court. It can only be called in question by proceedings on appeal, and until that order is set aside or otherwise altered by an appellant tribunal, the order has the force of an order of this court and must be obeyed. That is very trite law and law which I would have expected any solicitor of this court to understand.'
[10]Little v Lewis [1987] VR 798.
[11]Little v Lewis, 804.
Kaye J went on to observe that:[12]
I refer to the appellant's statement to this Court that he holds the belief that if he considers an order made by a court of law is wrong, he is not bound by it. This is a remarkable belief to be entertained by a member of the legal profession, more particularly as it is one which he might express to clients or lay members of the public. He must understand that an order of any court of competent jurisdiction, until set aside by a superior court, is required to be obeyed by the party or parties to whom it is directed.
The functions of a court of appeal include reviewing an order of a court of competent jurisdiction to investigate if it has been made in error. If error of law is found, the court of appeal will set aside the order. But until it has set it aside, the order is valid, enforceable and must be obeyed.
[12]Little v Lewis, 805.
In my view, MrsFrigger's application is misconceived. The question as to whether or not the ex parte orders of 17 January 2012 ought to be set aside (more than eight years after they were made) is not relevant to the question as to whether she is guilty of contempt for failing to comply with the orders. Unless and until the orders have been discharged, they must be obeyed.
Accordingly, it is my view that the transcript of the hearing of 17 January 2012 is not relevant to the notice of motion nor her defence of it.
Conclusion
For the reasons set out above, Mrs Frigger's application dated 5 March 2020 for an order that she obtain a copy of the transcript of 17 January 2012 and any related transcript should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill31 MARCH 2020
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